Topic 10: Statutory Damages under the Lord Cairns Act
Statutory damages provision. Supreme Court Act, s 38: If Court has jurisdiction to entertain an application for an injunction or SP, it may award damages in addition to, or in substitution for, an injunction or SP.
§ Sui generis remedy – distinct to damages at CL and equitable compensation.
JURISDICTION
To seek LCA damages, court needs to have the jurisdiction to entertain an application for injunction/SP. P does not have to have sought an injunction/SP
§ Giller: breach of confidence. Injunction pointless as videos already distributed. Awarded LCA damages.
§ Does not have to be the case that an injunction/SP would have been granted. Court may deny an injunction (based on laches or unclean hands etc), this does not undermine the jurisdiction to award LCA damages.
Cases most commonly concern breach of RC (Wrotham Park) or tort (ongoing trespass or nuisance).
EXERCISE OF DISCRETIONARY POWER
Damages in addition to an injunction: LCA less relevant today because of the fusion of equity and CL courts. Courts don’t need to rely on LCA to give damages.
Damages in substitution of an injunction: Distinguish two factual scenarios:
Damages in substitution: Scenario 1: injunction/SP would otherwise be granted [D argues for LCA damages. Rather pay damages than be restrained from trespassing on the land etc]
§ Traditional approach: Shelfer AL Smith LJ: Starting point - Where an ongoing wrongful interference with land, an injunction will typically be awarded
§ D trying to buy their way out of an injunction. Only exceptional cases will get damages instead of injunction:
- Injury to the Ps rights is small
- Injury capable of estimation in money (unique asset like land will not fulfil this requirement) - Ps injury adequately compensated by small payment
- Oppressive to D to grant injunction (exceptionally harsh)
§ Bingham MR in Jaggard: ‘It is important to bear in mind that the test is one of oppression, and the court should not slide into application of a general balance of convenience test.’
§ D’s conduct: D agrees to stop and continues to get it completed before injunction (Wrotham Park), court will grant an injunction not damages to stop building immediately. Reckless disregard of Ps rights. can’t get away with just paying damages.
§ Lindley LJ: D being public entity (gas/electricity operator) is not a good reason for refusing an injunction.
- No consideration of 3P or public interest. Only balance to Ps rights and oppression to D
§ Strict approach generally favours Ps rights.
Fen Tigers: Not the law in Australia (no HC decision yet) however could be persuasive for P to use: Lord Neuberger:
§ Most cases relied on to question Shelfer concern right to light not trespass to land etc.
§ LCA is discretionary and ought to be applied flexibly.
§ No starting presumption of an injunction. Burden on D to show why an injunction should not be granted.
§ If the only basis for injunction is ‘bare fact’ of interference with rights then court should incline to damages.
De-emphasizes importance of rights.
§ Reassertion of importance of public and 3P interests
- Planning permission carries real force of whether injunction should be granted. Evidential fact that what they are doing is in the broader interests of the public.
- Move from oppression test to mere balance of convenience test? Public v one claimant.
- LCA if financial implications of injunction for D would be disproportionate to the damage done to P Lord Sumption’s radical proposal: Damages instead of injunction. Unduly moralistic to insist on rights
§ Courts will generally lack information to properly take into account public interest
§ Damages are ordinarily an adequate remedy in nuisance. Injunction not usually granted in for public interest Lord Mance: People value things for reasons other than money. Lord Sumption’s approach puts public
interest/economic perspective too high Critical Reflections on Fen Tigers:
• Protection of rights: Lindley LJ Shelfer: Court has always protested against the notion of allowing a wrong to continue simply because the wrongdoer is able to pay for the injury inflicted.
§ Allows D to gain by their wrong: AL Smith LJ in Shelfer ‘A person by committing a wrongful act is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour's rights’.
§ Redistributions of rights (no longer leaning to P)
§ Assessing the public interest
